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Subirial  Ailment 


of  Sntentatimtal  Disputes 

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©be  (Enurt  of  Arbitral  iuotirr 

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mtro  (19fl?)  anb  Swammrttbpb  by  tljp 
Jnstitutp  of  3utcrnatuntal 
Sam  (1912) 

Bj  Sarnrs  Brmmt  Jrrnlt,  51$.  3. 


Published  Quarterly  by  American  Society  for  Judicial  Settlement 
of  International  Disputes 


Vice-President  of  the  Institute  of  International  Law 
Lecturer  on  International  Law  and  Diplomacy 
in  Johns  Hopkins  University 


NOVEMBER,  1912 


Entered  as  seeond-e 
office  at  Baltimore, 


$ KZ 
4850 
,.e  .J835 

re,  nO. 10 


A. 


21,  1910,  at  the  Post- 
let  of  July  16,  1894. 


dmiri  of  Arbitral  iusttrr 

Apprtrerb  by  tbe  §>jrnnb  ijague  Jlrare  (Enrtfrrrnre  (13117) 
mtb  jEprmttmrnbfii  by  lit?  Jnstitutf  of 
Jnltntatianal  Earn  (1312) 


The  Second  Hague  Peace  Conference,  which 
met  on  June  15  and  adjourned  on  October  18, 
1907,  approved,  among  other  projects,  an  ex- 
ceedingly important  convention  for  the  estab- 
lishment of  a Court  of  Arbitral  Justice  and 
recommended  that  the  Court  be  instituted  and 
put  in  operation  as  soon  as  an  agreement  could 
be  reached  by  the  Powers,  through  diplomatic 
channels,  upon  the  appointment  of  the  judges. 
The  significance  of  this  action  lay  in  the  fact 
that  for  the  first  time  in  the  world’s  history 
the  representatives  of  forty-four  civilized  na- 
tions, assembled  in  conference,  recognized  not 
merely  the  value  of  a judicial  decision  of 
international  disputes  which  diplomacy  may 


3 


have  failed  to  adjust,  but  the  inestimable  ad- 
vantages that  would  inevitably  flow  from  a 
determination  of  international  controversies  by 
a body  of  trained  lawyers,  appointed  for  a 
period  of  years  and  permanently  in  session, 
and  acting  under  a sense  of  judicial  responsi- 
bility. By  this  action  the  solidarity  of  na- 
tions, to  use  a phrase  which  has  recently  come 
into  use,  was  transferred  from  the  realm  of 
theory  to  the  domain  of  fact,  and  justice  be- 
tween nations  was  declared  to  be  of  interest 
not  merely  to  the  nations  in  controversy,  but 
to  all  members  of  the  society  of  nations  recog- 
nizing and  applying  in  their  intercourse  the 
principles  of  international  law.  A truly  per- 
manent court  was  to  supersede  the  accidental 
or  temporary  mixed  commission ; that  is  to 
say,  a definite  number  of  judges,  selected  by 
the  nations  as  a whole  and  in  advance  of  the 
controversy,  was  to  take  the  place  of  the  per- 
manent list  of  judges  (devised  by  the  Confer- 
ence of  1899),  from  which  list,  after  much  de- 
lay and  difficulty,  a temporary  tribunal  could 
be  formed  for  the  trial  of  an  isolated  case. 
The  impartial  and  passionless  decision  of  in- 
ternational controversies  in  accordance  with 


4 


principles  of  law  was  to  supersede  the  adjust- 
ment of  such  controversies  “on  the  basis  of 
respect  for  law.”  In  a word,  a Court  was  to 
be  created  in  the  sense  of  municipal  law,  and 
to  this  Court,  international  in  fact  as  well  as 
in  theory  because  called  into  being  by  the  na- 
tions as  a whole,  international  disputes  of  a 
legal  or  judicial  nature  could  be  referred  with 
the  same  certainty  and  confidence  that  the  dis- 
putes of  individuals  are  submitted  to  munici- 
pal tribunals. 

The  time  at  the  disposal  of  the  Conference 
was  limited  — it  sat  but  four  months  — and 
many  other  subjects  of  interest  to  the  nations 
were  to  be  discussed  and  conventions  framed 
to  give  them  form  and  effect.  The  difficulties 
in  the  way  of  appointing  the  judges  were  great 
and  required  more  time  and  thought  than  the 
delegates  could  spare  in  the  storm  and  stress 
of  the  Conference,  and  the  views  of  the  larger 
and  the  smaller  states  were  unfortunately  op- 
posed and  incapable  of  compromise  in  an  at- 
mosphere charged  with  distrust  and  suspicion. 
It  would  have  been  an  easy  matter  to  compose 
a Court  of  forty-four  judges,  by  assigning  a 
judge  to  each  state  represented  at  the  Confer- 


5 


ence.  To  reduce  the  number  from  forty-four 
to  fifteen  involved  renunciation  and  com- 
promise ; it  was  not  merely  a problem  of 
mathematics.  But  difficult  as  is  the  problem, 
it  is  not  impossible  of  solution,  if  after  re- 
flexion and  with  much  good-will  we  approach 
it  from  a different  point  of  view.  For  it  is  not 
necessary  that  each  nation  be  individually  rep- 
resented as  such  by  a judge  of  its  choice,  but 
that  the  tribunal  be  a Court  of  the  nations  in 
the  sense  that  it  is  created  by  the  society  of 
nations  for  the  benefit  of  all,  rather  than  for 
the  profit  of  the  few  or  of  the  many,  and  that 
the  judges  be  delegates  of  the  international 
community  rather  than  representatives  of  any 
of  its  members.  We  do  not  in  material  mat- 
ters question  the  statement  that  the  whole  is 
greater  than  any  of  its  parts.  If  we  apply  this 
simple  axiom  to  international  relations,  we 
must  admit  that  the  society  of  nations  is 
greater  than  any  of  its  parts.  If,  then,  in  ac- 
cordance with  this  elementary  principle,  we 
consider  the  common  good  as  superior  to  the 
claims  of  any  nation  or  group  of  nations,  we 
may  assuredly  blaze  a trail  through  difficulties 


6 


which,  like  a dense  and  trackless  forest,  shut 
us  from  the  light. 

The  Second  Hague  Conference  wisely  trusted 
the  future,  for,  while  recognizing  its  inability 
to  constitute  the  Court,  it  approved  the  con- 
vention of  thirty-five  articles  providing  for  its 
organization,  its  jurisdiction,  and  its  procedure, 
and  recommended  “to  the  signatory  Powers 
the  adoption  of  the  project  of  a convention  for 
the  establishment  of  a Court  of  Arbitral  Justice 
and  putting  it  into  effect,  as  soon  as  an  accord 
be  reached  upon  the  choice  of  the  judges  and 
the  constitution  of  the  Court.”  It  is  well 
known  that  the  United  States  is  seriously  en- 
deavoring to  establish  the  Court  through  dip- 
lomatic channels,  proposing  to  invest  the  Prize 
Court  with  the  functions  and  jurisdiction  of 
the  Court  of  Arbitral  Justice,  and  that  this 
recommendation  was  favorably  received  by  the 
Naval  Conference  sitting  in  London  in  1909. 

But  it  is  gratifying  to  friends  of  the  judicial 
settlement  of  international  disputes  that  pri- 
vate bodies  have  also  taken  up  the  matter. 
Thus,  the  American  Society  for  Judicial  Set- 
tlement of  International  Disputes,  organized 
in  1910  for  the  express  purpose  of  creating 


7 


sentiment  in  favor  of  a permanent  court,  held 
an  international  conference  in  Washington  in 
December,  1910,  and  the  report  of  its  proceed- 
ings deserves,  to  quote  the  Revue  de  Droit  Inter- 
national et  de  Legislation  Comparee,  “to  be  read 
from  beginning  to  end.” 

The  Institute  of  International  Law,  com- 
posed of  publicists  from  as  many  states  as 
were  represented  at  the  First  Hague  Confer- 
ence, recently  directed  its  attention  to  the  es- 
tablishment of  the  Court  of  Arbitral  Justice, 
and  has  both  in  committee  and  in  full  session 
declared  itself  squarely  in  favor  of  its  institu- 
tion. Thus,  a special  committee  of  nine  mem- 
bers of  the  Institute,  namely,  Messrs,  von  Bar, 
Fauchille,  Fromageot,  Holland,  Hagerup,  Re- 
nault, Ed.  Rolin,  J.  B.  Scott,  and  Westlake, 
who  were  appointed  to  consider  subjects  likely 
to  be  discussed  by  the  Third  Peace  Conference, 
met  in  Paris  on  October  6-7,  1911,  and  unani- 
mously recommended  the  establishment  of  the 
Court,  as  appears  from  the  following  extract 
from  the  official  report  of  its  proceedings: 

Several  members  called  attention  to  the  fact  that 
the  solution  of  this  question  at  the  meeting  of  the 


8 


Second  Hague  Peace  Conference  encountered  a po- 
litical rather  than  a juridical  obstacle,  arising  from 
the  difficulty  of  agreeing  upon  the  choice  of  judges 
and  upon  the  constitution  of  the  Court.  These 
members  observed  that,  while  the  Institute  cannot 
resolve  a difficulty  of  this  nature,  it  nevertheless  ap- 
peared that  the  Institute  should  show  the  interest 
which  it  takes  in  the  institution,  and  in  consequence 
the  question  could  not  be  passed  over  in  silence. 
It  is  in  this  sense  that  the  following  resolution  was 
unanimously  voted:  “The  Commission  considers  it 
highly  desirable  that  satisfaction  be  given  to  the 
first  voeu  adopted  by  the  Second  Peace  Conference 
in  favor  of  the  establishment  of  a Court  of  Arbitral 
Justice.” 

The  report  of  the  Committee  of  Nine,  was 
laid  before  the  Institute  at  the  Christiania  ses- 
sion of  1912,  and  on  August  28,  1912,  the  In- 
stitute recorded  itself,  after  prolonged  and 
thorough  discussion,  unequivocally  in  favor  of 
the  establishment  of  the  proposed  Court  of 
Arbitral  Justice,  as  appears  from  the  official 
minutes  of  its  proceedings.  The  following 
resolution,  giving  effect  to  the  recommenda- 
tion of  the  Committee,  was  proposed  by  Dr. 
Lammasch  and  unanimously  adopted: 


9 


While  recognizing  the  great  value  of  the  Court 
of  Arbitration,  instituted  by  the  Peace  Conference 
in  1899,  to  international  justice  and  the  maintenance 
of  peace,  The  Institute  of  International  Law: — 

In  order  to  facilitate  and  to  hasten  recourse  to 
arbitration;  to  assure  the  settlement  of  differences 
of  a legal  nature  by  arbiters  representing  the  dif- 
ferent systems  of  legislation  and  of  jurisprudence; 

In  order  to  reinforce  the  authority  of  the  tribunals 
in  the  eyes  of  the  representatives  of  the  parties  in 
controversy  by  having  the  members  of  the  tribunal 
known  to  them  in  advance,  and  likewise  to  increase 
the  moral  force  of  the  decision  by  having  it  rendered 
by  a larger  number  and  by  the  authority  of  arbiters 
recognized  by  the  totality  of  the  States; 

In  order  to  resolve,  in  case  of  a treaty  of  com- 
pulsory arbitration  containing  a clause  to  this  effect, 
the  doubts  which  might  arise  as  to  whether  or  not 
a particular  controversy  belongs  to  the  category  of 
questions  subject  to  compulsory  arbitration  under 
the  treaty; 

In  order  to  create  a Court  of  Appeals  for  decisions 
rendered  by  tribunals  constituted  otherwise  than  in 
conformity  with  the  rules  of  the  Hague  Convention, 
in  case  the  special  compromis  should  provide  for  the 
possibility  of  such  a revision; 

Considers  it  highly  desirable  that  satisfaction  be 
given  to  the  first  voeu  adopted  by  the  Second  Peace 


10 


Conference  in  favor  of  the  establishment  of  a Court 
of  Arbitral  Justice. 

When  it  is  borne  in  mind  that  publicists  rep- 
resenting fourteen  members  of  the  society  of 
nations  were  present,  the  action  of  the  Insti- 
tute can  be  considered  as  little  less  than  an 
event  of  international  importance. 

In  an  address  on  the  next  Hague  Peace  Con- 
ference, delivered  before  the  London  School 
of  Economics  on  October  5,  1912,  Lord  Justice 
Kennedy  said,  as  reported  by  the  London 
Times : 

“Ancther  objective  was  the  establishment  of  a 
Court  which  should  be  a real  judicial  tribunal;  which 
by  its  character  should  command  the  respect  and  by 
the  moral  weight  of  its  judgments  compel  the  obedi- 
ence even  of  the  most  powerful  and  warlike  nations. 
He  did  not  mean  a temporary  Board  of  Arbitration, 
but  a permanent  Court  of  Justice.  That  was  the 
most  hopeful,  if  not  the  only  way  in  which  there 
would  be  gradually  evolved  in  the  civilized  world  a 
recognized  system  of  international  law.  He  could 
see  no  insuperable  difficulty  to  the  formation  or 
working  of  such  a Court.  The  position  of  its 
Judges  would  be  one  of  the  highest  in  the  world. 
If  all  the  conferring  Powers  would  subscribe 


11 


amongst  themselves,  he  supposed  the  cost  would 
not  amount  to  that  of  a single  modern  battleship.” 

If  we  accept  the  measured  statement  of  Sec- 
retary Root  in  his  instructions  to  the  American 
delegates  to  the  Second  Hague  Peace  Confer- 
ence, that  “among  the  most  valuable  services 
rendered  to  civilization  by  the  Second  Hague 
Conference  will  be  found  the  progress  made 
in  matters  upon  which  the  delegates  reach  no 
definite  agreement,”  we  may  well  admit  that 
the  approval  in  principle  of  a truly  perma- 
nent Court  composed  of  judges  acting  under 
a sense  of  judicial  responsibility  marks  an 
epoch  in  international  relations;  for  the  exist- 
ence and  successful  operation  of  such  a Court 
would  demonstrate  beyond  the  possibility  of 
contradiction  the  juridical  organization  of  the 
world. 

JAMES  BROWN  SCOTT. 


12 


PROCES-VERBAL. 


Extract  from  the  Proces-Verbal  of  the  after- 
noon session  of  August  28,  1912. 

Presidency  of  Mr.  Hagerup. 

The  President  opens  the  discussion  in  regard 
to  a voeu  proposed  by  Mr.  Lammasch  in  the 
interest  of  the  creation  of  a Court  of  Arbitral 
Justice. 

Mr.  Lammasch  reads  the  following  voeu: 

While  recognizing  the  great  value  of  the  Court 
of  Arbitration,  instituted  by  the  Peace  Conference 
in  1899,  to  international  justice  and  the  maintenance 
of  peace,  The  Institute  of  International  Law: — 

In  order  to  facilitate  and  to  hasten  recourse  to 
arbitration;  to  assure  the  settlement  of  differences 
of  a legal  nature  by  arbiters  representing  the  dif- 
ferent systems  of  legislation  and  of  jurisprudence; 

In  order  to  reinforce  the  authority  of  the  tribunals 
in  the  eyes  of  the  representatives  of  the  parties  in 
controversy  by  having  the  members  of  the  tribunal 
known  to  them  in  advance,  and  likewise  to 
increase  the  moral  force  of  the  decision  by  having 
it  rendered  by  a larger  number  and  by  the  authority 
of  arbiters  recognized  by  the  totality  of  the  States; 


13 


In  order  to  resolve,  in  case  of  a treaty  of  com- 
pulsory arbitration  containing  a clause  to  this  effect, 
the  doubts  which  might  arise  as  to  whether  or  not 
a particular  controversy  belongs  to  the  category  of 
questions  subject  to  compulsory  arbitration  under 
the  treaty; 

In  order  to  create  a Court  of  Appeals  for  decisions 
rendered  by  tribunals  constituted  otherwise  than  in 
conformity  with  the  rules  of  the  Hague  Convention, 
in  case  the  special  compromis  should  provide  for  the 
possibility  of  such  a revision; 

Considers  it  highly  desirable  that  satisfaction  be 
given  to  the  first  voeu  adopted  by  the  Second  Peace 
Conference  in  favor  of  the  establishment  of  a Court 
of  Arbitral  Justice. 

This  conclusion  agrees  with  that  adopted  by 
the  Committee  of  Nine. 

The  proposition  to  create  a practically  per- 
manent arbitration  court,  made  by  the  Ameri- 
can delegates  to  the  Second  Peace  Conference, 
has  suffered  from  a misunderstanding.  This 
misunderstanding  consists  in  the  fact  that  it 
was  at  first  thought  that  the  proposition  was 
intended  to  do  away  with  the  existing  perma- 
nent court  and  to  substitute  for  it  the  one  pro- 
posed by  the  American  delegation.  Now,  this 
was  not  the  case.  As  was  subsequently  ex- 


14 


plained  to  the  satisfaction  of  everyone,  it  had 
for  its  object  the  establishment  of  a new  court 
by  the  side  of  the  old.  In  the  course  of  the 
scientific  discussion  which  followed  the  Second 
Hague  Conference,  the  defenders  of  the  Court 
of  Arbitral  Justice  have  oftentimes,  in  the 
opinion  of  Mr.  Lammasch,  made  the  mistake 
of  introducing  into  the  arguments  which  they 
advanced  in  the  interest  of  this  new  court 
bitter  and  sometimes  unjust  criticism  of  the 
arbitral  decisions  rendered  by  the  tribunals 
constituted  within  the  precincts  of  the  present 
court.  Mr.  Lammasch  proceeds  to  set  forth 
the  reasons  of  a purely  juridical  nature  that 
militate  in  favor  of  a permanent  court  on  the 
lines  of  the  proposed  Court  of  Arbitral  Justice. 
Such  a court  might  well  be  composed  of  a 
larger  number  of  arbitrators  than  we  find  in 
the  present  tribunals  which,  as  a rule,  have 
from  three  to  five  members.  Now,  the  greater 
the  number  of  judges  who  participate  in  one 
and  the  same  decision,  the  greater  will  be  the 
certainty  of  justice  and  also  its  moral  force. 
This  moral  force  wall  be  increased  by  the 
further  fact  that  these  members  of  the  new 
court  will  represent  the  various  systems  of 


15 


legislation  and  procedure.  The  procedure 
which  they  will  have  followed  and  the  result 
which  they  will  have  reached  become,  there- 
fore, the  more  intelligible  to  everybody.  At 
the  present  time,  it  is  mainly  the  difference 
between  the  Anglo-American  system  and  the 
various  systems  of  the  European  continent 
that  leads  at  times  to  misunderstandings. 
These  misunderstandings  could  be  avoided  if, 
in  each  case,  we  could  make  certain  of  the  col- 
laboration of  arbitrators  belonging  to  both  of 
these  two  principal  groups  of  systems.  Since 
the  members  of  the  Court  of  Arbitral  Justice 
are  known  beforehand  by  the  Powers  in  con- 
troversy, they  may  choose,  with  full  knowledge 
of  the  members  composing  them,  between  the 
older  court  and  the  new  one. 

If  the  members  of  the  new  court  inspire 
them  with  confidence,  they  will  choose  that 
court.  If  they  do  not  inspire  them  with  con- 
fidence, then  they  organize  an  ad  hoc  tribunal 
in  accordance  with  the  regulations  of  the 
Hague  Convention  of  1899  as  amended  by  the 
Second  Conference. 

In  the  tribunals  organized  in  accordance 
with  the  conventions  of  1899  and  1909,  the 


16 


members  and  the  President,  who  are  fre- 
quently but  little  known  to  the  agents  and  the 
counsel  of  the  Parties,  must  win  their  confi- 
dence in  the  course  of  the  pleading,  whilst  in 
the  Court  of  Arbitral  Justice  they  will  be 
known  not  only  to  the  Parties  themselves  but 
to  their  representatives  in  the  controversy  as 
well,  a fact  which  will  increase  and  insure  the 
force  of  the  interlocutory  decisions  to  which 
the  Parties  must  submit. 

In  the  present  system,  the  procedure  to  be 
followed  in  organizing  the  arbitral  tribunal 
sometimes  entails  deplorable  delays.  In  the 
course  of  the  delays  made  necessary  by  the 
election  of  the  arbitrators  and  especially  of  the 
President,  the  situation  may  become  compli- 
cated by  the  heat  of  public  discussion,  and  the 
amicable  settlement  of  the  difference  by  ju- 
dicial authority  may  be  imperiled. 

As  for  the  smaller  States,  we  must  not  for- 
get that  the  present  procedure  is  sometimes 
rather  costly,  whilst  the  expenses  to  be  borne 
by  them  through  the  creation  of  the  new  Court 
of  Arbitral  Justice  are  small,  if  we  are  to  judge 
by  the  expenses  entailed  by  the  Postal  Con- 
vention. 


17 


But  the  greatest  advantages  of  the  system 
of  the  Court  of  Arbitral  Justice  may  perhaps 
be  stated  to  be  the  following: 

It  may  happen  that  two  States  which  have 
concluded  a treaty  of  compulsory  arbitration 
are  not  agreed  as  to  whether  a definite  con- 
troversy v/hich  arises  between  them  is  of  the 
character  of  those  which  they  are  obliged  to 
arbitrate  by  virtue  of  the  treaty.  In  such 
cases,  it  is  quite  clear  that  they  should  submit 
this  preliminary  question  to  the  decision  of  the 
Court  of  Arbitral  Justice.  The  arbitration 
treaty  itself  might  contain  a clause  to  that  ef- 
fect, or  a special  compromis  might  refer  the 
decision  of  this  preliminary  matter  to  the 
court. 

Lastly,  the  Court  of  Arbitral  Justice  might 
operate,  if  the  special  compromis  or  the  arbi- 
tration treaty  contained  a provision  to  that  ef- 
fect, as  a tribunal  of  appeal  (revision)  for 
arbitral  decisions  rendered  by  tribunals  organ- 
ized in  accordance  with  the  rules  of  the  Hague 
Convention. 

For  these  reasons,  in  the  opinion  of  Mr. 
Lammasch,  the  creation  of  a Court  of  Arbitral 
Justice  as  a complementary  organ  of  the 


18 


present  court  would  constitute  real  progress 
along  the  path  of  justice  and  of  peace.  Again 
Mr.  Lammasch  emphasizes  the  fact  that  it  is 
not  a question  of  substituting  the  new  court 
for,  nor  of  superimposing  it  upon,  the  present 
court.  It  seems  to  him  that  his  personality 
alone  constitutes  the  guaranty  that  any  propo- 
sition emanating  from  him  could  not  be  in- 
spired by  a spirit  of  hostility  to  the  present 
court. 

Sir  Thomas  Barclay  approves  the  remarks 
of  Mr.  Lammasch.  He  asks  the  latter  if  he 
thinks  the  Court  of  Prize  should  be  taken  as 
the  base  on  which  to  establish  the  permanent 
court. 

Mr.  Lammasch  answers  that  that  is  not  his 
intention. 

Sir  Thomas  Barclay  then  puts  a question  re- 
garding the  residence  of  the  judges  and  the 
manner  of  organizing  the  court. 

Mr.  Lammasch  declares  that  this  last  ques- 
tion is  of  too  delicate  a nature  to  be  solved  by 
the  Institute.  The  system  of  rotation  was  in- 
vented by  the  Hague  Court  in  order  to  safe- 
guard the  mathematical  equality  of  the  States. 
As  for  the  permanent  residence  of  the  judges 


19 


at  The  Hague,  this  evidently  will  not  be 
necessary. 

Mr.  Clunet  remarks  that  actually  the  great- 
est difficulty  lies  in  the  selection  of  the  arbitra- 
tors by  the  States,  a selection  which  consumes 
too  much  time.  Certain  States  are  inclined  to 
press  the  appointment  as  judges  to  the  arbitra- 
tion tribunals  of  non-professionals  and  even 
their  own  officials.  They  would  be  spared  this 
reciprocal  temptation  if  there  existed  a body  of 
magistrates  rendered  independent  by  the  na- 
ture of  their  functions  and  by  the  fact  that 
their  government  had  selected  them  before 
any  controversy  had  arisen.  This  would  be  of 
great  advantage  to  counsel. 

Mr.  Lammasch. — If  we  accept  the  principle 
of  freedom  of  choice  by  the  States  between  the 
permanent  court  and  a tribunal  composed  cd 
hoc,  the  institution  is  excellent.  The  remark 
of  Mr.  Clunet  is  of  the  greatest  value.  I will 
go  even  further.  The  very  presence  of  the 
nationals  as  arbitrators  on  the  tribunals  has 
certain  drawbacks.  Of  course,  they  often  dis- 
play perfect  impartiality  as,  for  instance.  Mr. 
justice  Gray  and  Sir  Charles  Fitzpatrick  in  the 


20 


North  American  Fisheries  case.  But  the  re- 
verse may  happen. 

Mr.  de  Lapradelle  insists  upon  the  fact  that 
on  the  proper  occasion  nationals  as  arbitrators 
know  how  to  be  true  judges. 

Mr.  Lammasch. — The  establishment  of  a 
permanent  court,  while  decreasing  to  a large 
extent  the  dangers  set  forth  by  Mr.  Clunet, 
would  not  entirely  remove  them.  If  diplo- 
matists desire  a compromise,  they  may  make 
choice  of  a special  tribunal. 

Mr.  Kebedgy  recognizes  all  the  advantages 
of  a permanent  court  and  the  necessity  of 
organizing  that  court  with  competent  persons 
on  it.  He  could  not,  however,  but  be  struck 
at  the  same  time  with  the  difficulties  which  the 
organization  of  this  court  has  encountered. 
He  declares  himself  ready  to  vote  for  the  reso- 
lution offered  by  Mr.  Lammasch,  but  on  the 
condition  that  it  be  thoroughly  understood  that 
that  implies  in  no  way  the  acceptation  before- 
hand of  a court  composed  in  any  offhand 
manner. 

The  President  states  that  everybody  agrees 
to  eliminate  the  question  of  the  composition  of 
the  court. 


Mr.  J.  B.  Scott  expresses  his  complete  ac- 
ceptance of  the  views  expressed  by  Mr.  Lam- 
masch  and  of  the  judicious  observations  of 
Mr.  Clunet  upon  the  creation  of  a court  of 
arbitral  justice.  He  calls  attention  to  the  fact 
that  in  questions  of  a political  nature,  which 
governments  have  not  been  able  to  settle 
through  diplomatic  channels,  a compromise 
may  be  reached  by  the  existing  court.  But,  if 
the  governments  wish  to  settle  their  differ- 
ences bj'  the  impartial  application  of  principles 
of  law,  they  must  appeal  to  a court  composed 
of  jurists,  that  is  to  say,  of  men  accustomed  to 
apply  principles  of  law  to  concrete  problems. 
It  may  well  be  that  the  compromise  of  an  in- 
ternational dispute  is  to  be  preferred  to  its 
judicial  determination,  but  governments  should 
know  in  advance  and  by  the  very  nature  of  the 
institution  to  which  resort  is  had,  whether  to 
expect  a judgment  based  upon  principles  of 
justice  also  known  in  advance.  Thus,  within 
the  last  two  years,  Chile  and  the  United  States 
submitted  a dispute — the  so-called  Alsop  case 
— which  diplomacy  had  failed  to  adjust  and 
which  the  parties  could  not  agree  to  arbitrate, 
to  the  King  of  Great  Britain  as  amicable  com- 


22 


positor.  It  may  also  be  the  desire  of  the  dis- 
putants that  a controversy  shall  be  settled  in 
general  reliance  upon  principles  of  law  or,  as 
the  convention  for  the  peaceful  settlement  of 
international  disputes  puts  it,  “on  the  basis  of 
respect  for  law,”  but  not  necessarily  deter- 
mined by  the  mere  application  of  those  princi- 
ples to  the  esclusion  of  those  larger  and 
broader  views,  which  we  usually  identify  with 
equity.  But  the  government  should  clearly 
know  whether  they  are  to  expect  a judicial 
or  an  equitable  adjustment.  In  the  present 
method  cf  arbitration,  it  is  impossible  to  fore- 
cast the  probable  result,  because  it  cannot  be 
known  in  what  proportion  the  judges  of  the 
parties’  choice  may  apply  law  or  lean  to  equity, 
and  it  is  to  be  feared  that  governments  hesi- 
tate to  resort  to  the  present  permanent  court 
by  reason  of  the  doubt  and  uncertainty  which 
must  exist  from  its  composition  and  from  the 
tendency  of  persons  appointed  under  such  con- 
ditions to  compromise.  If,  however,  a court 
existed  with  a permanent  body  of  judges,  who 
had  had  either  judicial  experience  or  the  train- 
ing of  lawyers  and  jurists,  nations  in  litigation 
might  well  be  inclined  to  submit  the  case  to 


23 


the  judgment  of  such  a tribunal,  because  the 
principles  of  law  to  be  applied  or  rejected  can 
be  divined  in  advance  and  the  members  of  the 
court,  judges  by  profession  or  lawyers  by 
training,  could  be  relied  upon  to  apply  those 
principles  of  law,  which  either  are  or  can  be 
known  by  the  parties  before  the  submission 
of  the  case.  In  this  way  nations  would  be  free 
to  choose  the  method  of  adjustment  appropri- 
ate to  the  dispute  or  to  the  principle  involved, 
and  instead  of  one  method  for  the  peaceable 
settlement  of  international  disputes,  we  would 
have  three — namely,  amicable  composition,  ar- 
bitral adjustment,  judicial  decision. 

We  may  readily  admit  that  peaceful  settle- 
ment is  in  and  of  itself  the  goal  toward  which 
we  strain  our  eyes,  or  in  other  words,  that 
peaceful  settlement  is  the  substance ; the 
method  of  settlement  a matter  of  form.  A 
little  reflection,  however,  will  convince  us  that 
this  is  not  really  so,  and  that  the  manner  of 
settling  a controversy  is  not  a matter  of  indif- 
ference to  believers  in  peaceful,  especially  ju- 
dicial settlement.  The  opinion  of  an  amicable 
compositor  can  neither  be  forecast  nor  serve  as 
a precedent.  Arbiters  of  the  parties’  choice 


24 


are  supposed  to  be  free  to  exercise  their  dis- 
cretion in  reaching  a settlement,  and,  if  this  be 
so,  it  is  clear  that  their  holding  need  not  influ- 
ence a future  body  as  free  to  exercise  its  judg- 
ment and  discretion  as  they.  In  the  case  of  a 
tribunal  composed  of  permanent  judges,  it  is 
at  once  evident  that  they  must  of  necessity 
consider  carefully  before  rendering  a judgment, 
as,  when  once  rendered,  they  cannot  very  well 
question,  overthrow  or  otherwise  refuse  to  fol- 
low it,  for  by  so  doing  they  discredit  them- 
selves as  well  as  their  judgment.  A perma- 
nent court  is  therefore  from  its  very  nature 
calculated  to  develop  international  law  by  a 
series  of  precedents,  just  as,  for  example,  the 
development  of  the  common  law  of  England  is 
due  almost  wholly  to  judicial  decisions.  The 
proposers  of  the  court  of  arbitral  justice  had  in 
mind  this  inherent  and  inevitable  tendency  of 
a court  of  justice,  when  they  recommended  the 
court  of  arbitral  justice  as  capable  of  assuring 
the  continuity  of  arbitral  jurisprudence.  Mr. 
Scott  is  therefore  a declared  and  outspoken 
partisan  of  the  proposed  court  of  arbitral 
justice,  which  must,  in  his  opinion,  of  necessity 
inspire  greater  confidence  among  the  States 


25 


than  the  existing  court,  and  which  would  be 
capable  of  developing  international  lav/  as  a 
system  of  law  for  the  peaceful  settlement  of 
international  controversies.  While  fully  aware 
of  the  difficulties  involved  in  the  composition 
of  such  a permanent  tribunal,  he  nevertheless 
believes  that  they  will  be  overcome,  if  the  na- 
tions really  want  the  court,  and  devote  them- 
selves seriously  and  with  singleness  of  purpose 
to  its  creation. 

Mr.  Gram  is  in  harmony  with  the  judgment 
expressed  by  Mr.  Lammasch.  The  question 
of  the  composition  of  the  court  seems  to  him 
to  be  the  most  delicate,  and  so  far  as  he  is  con- 
cerned, he  can  hardly  foresee  its  solution.  The 
representation  of  the  States  in  controversy  be- 
fore the  tribunal  cannot  but  present  certain  in- 
conveniences. Therefore,  he  believes  that  the 
total  number  of  nationals  acting  as  arbitrators 
on  a given  tribunal  should  not  exceed  the  total 
number  of  neutral  members  of  tribunal. 

Mr.  Clunet  asks  Mr.  Gram  whether,  in  a 
general  way,  it  would  be  desirable  to  exclude 
nationals  entirely  as  arbitrators  or  whether 
the  present  system,  that  is,  the  system  of  a ma- 
jority of  neutral  members,  is  not  more  satisfac- 


:G 


tory  since  it  permits  both  parties  to  call  atten- 
tion, in  the  very  bosom  of  the  tribunal,  to  the 
arguments  favorable  to  their  case. 

Mr.  Gram  declares  that  this  last  form  is  not 
a bad  one.  It  may,  however,  happen  that  there 
are  more  than  two  parties  in  controversy  and, 
even  if  one  were  to  approve  the  present  com- 
position, one  may  ask  whether  it  would  not  be 
preferable  that  there  be  only  neutral  magis- 
trates. I like  to  think,  he  said,  that  that  will 
be  the  solution  of  the  question  in  the  future. 

Messrs.  Jordan  and  de  Lapradelle  both  re- 
marked that  the  presence  of  nationals  as  arbi- 
trators on  the  tribunal  offers  assurance  to  the 
parties  against  phraseology  that  might  wound 
their  susceptibilities. 

Mr.  Lammasch  believes  that  in  certain  cases 
of  a political  nature,  the  States  would  not 
readily  give  up  the  guarantee  which  they  find 
in  the  presence  of  nationals  as  arbitrators  on 
the  tribunal.  He  believes  that  the  present  sys- 
tem has  the  advantage  of  reassuring  the  States 
and  of  causing  them  to  accept  arbitration  more 
readily.  It  is  better  to  have  arbitration  by 
national  arbitrators  than  none  at  all.  It  might, 


27 


perhaps,  be  well  to  have  nationals  on  arbitral 
tribunals  only  in  an  advisory  capacity. 

Mr.  Kebedgy,  after  having  heard  the  state- 
ments of  his  eminent  colleagues,  Messrs.  Gram 
and  Lammasch,  would  relate  the  facts  which 
have  come  to  him  from  his  own  experience, 
having  been  a member  of  an  international 
court  of  justice  for  four  years.  He  thinks  it 
very  desirable  that  an  international  court 
should  have  among  its  members  representa- 
tives of  the  interested  parties.  That  consti- 
tutes a guarantee  that  the  question  has  been 
examined  from  every  possible  viewpoint  and 
that  the  decision  will  be  better  received  by  all 
those  interested. 

The  President  puts  the  proposition  of  Mr. 
Lammasch  to  a vote  and  it  is  adopted  unani- 
mously. 


28 


Ammrati  ©nrielg  far  Subtrxal  §>rttlrmrnt  nf 
Jnfrrnaftmtal  Siaptrtrs 

Ahutaortr  Council 
Lyman  Abbott,  New  York. 

Edwin  A.  Alderman,  Virginia. 

James  B.  Angell,  Michigan. 

Simeon  E.  Baldwin,  Connecticut. 

Richard  Bartholdt,  Missouri. 

Alexander  Graham  Bell,  Washington,  D.  C. 

R.  L.  Borden,  Ottawa,  Ontario. 

Theodore  E.  Burton,  Ohio. 

Joaquin  D.  Casasus,  Mexico  City,  Mexico. 

George  E.  Chamberlain,  Oregon. 

Winston  Churchill,  New  Hampshire. 

George  B.  Cutten,  Wolfville,  N.  S. 

William  R.  Day,  Ohio. 

Jacob  M.  Dickinson,  Washington,  D.  C. 

Andrew  S.  Draper,  New  York. 

Charles  W.  Eliot,  Massachusetts. 

William  Dudley  Foulke,  Indiana. 

James  Cardinal  Gibbons,  Maryland. 

George  Gray,  Delaware. 

Charles  Noble  Gregory,  Iowa. 

Peter  S.  Grosscup,  Illinois. 

Joseph  F.  Johnston,  Alabama. 

David  Starr  Jordan,  California. 

Harry  Pratt  Judson,  Illinois. 

William  H.  King,  Utah. 

George  W.  Kirchwey,  New  York. 

Philander  C.  Knox,  Washington,  D.  C. 

Charles  F.  LiB3Y,  Maine. 

Francis  B.  Loomis,  Washington,  D.  C. 

Horace  H.  Lurton,  Tennessee. 

R.  McBride.  Victoria,  B.  C. 

Pablo  Macedo,  Mexico  City,  Mexico. 

Charles  Marcil,  Ottawa,  Ont. 

Sidney  E.  Mezes,  Texas. 


29 


S.  C.  Mitchell,  South  Carolina. 

Don  Romulo  S.  Naon,  Argentine  Republic. 
Francis  G.  Newlands,  Nevada. 

L.  Oppenheim,  Cambridge,  England. 

Thomas  Nelson  Pace,  Washington,  D.  C. 
Walter  H.  Pace,  New  York. 

W.  Peterson,  Afontreal. 

Sir  Thomas  Raleigh,  London,  England. 
Whitelaw  Reid,  London,  England. 

William  Renwick  Riddell,  Toronto,  Ont. 

Uriah  M.  Rose,  Arkansas. 

A.  C.  Rutherford,  Edmonton,  Alberta. 

Walter  Scott,  Regina,  Saskatchewan. 

Albert  Shaw,  New  York. 

Hoke  S.mith,  Georgia. 

Bishop  Robert  Strance,  North  Carolina. 

Sir  Charles  Hibeert  Tupper,  Vancouver,  B.  C. 
George  Turner,  Washington. 

Charles  R.  Van  Hise,  Wisconsin. 

Benjamin  Ide  Wheeler,  California. 

William  Allen  White,  Kansas. 

George  G.  Wilson,  Massachusetts. 

Prince  de  Cassano,  Italy. 


30 


Ammran'  ©oriilij  for  Ifuiurinl  Srtllemrnt  of 
JJnlrntafinnal  Sicpulrs 

(Officers 

Honorary  President,  William  Howard  Taft. 
President,  Simeon  E.  Baldwin, 

Hartford,  Conn. 

Vice-President,  Joseph  H.  Choate, 

New  York  City. 

Secretary,  Theodore  Marburg, 

Baltimore,  Md. 

Treasurer,  J.  G.  Schmidlapp, 

Cincinnati,  Ohio. 

Eirrutiur  ffininmitlre 

Simeon  E.  Baldwin, 

Joseph  H.  Choate, 

Theodore  Marburg, 

J.  G.  Schmidlapp, 

W.  W.  Willoughby, 

Henry  B.  F.  Macfarland, 

James  Brown  Scott,  ex-President, 

John  Hays  Hammond,  ex-President. 

Life  membership,  $100;  Sustaining  membership,  $10  a year; 
Annual  membership,  $1  a year. 

Remit  to  Treasurer,  J.  G.  Schmidlapp,  Cincinnati,  U.  S.  A. 
Address  inquiries  to  secretary,  Theodore  Marburg,  Baltimore,  U. 
S.  A. 

Additional  copies  of  this  or  other  issues  of  the 
Judicial  Settlement  Quarterly  may  be  obtained  with- 
out charge  from  the  Assistant  Secretary, 

TUNSTALL  SMITH, 

The  Preston,  Baltimore,  U.  S.  A. 


31 


Publications  of  the  American  Society  for  Judicial 
Settlement  of  International  Disputes — 

1.  The  New  Era  of  International  Courts,  by 
Simeon  E.  Baldwin.  August,  1910. 

2.  The  Necessity  of  a Permanent  Tribunal,  by 
Ernest  Nys.  November,  1910. 

Supplement — The  American  Society  for  Judicial 
Settlement  of  International  Disputes,  by  James 
Brown  Scott.  November,  1910. 

3.  The  Importance  of  Judicial  Settlement,  by 
Elihu  Root.  February,  1911. 

4.  The  Development  of  the  American  Doctrine  of 
Jurisdiction  of  Courts  Over  States,  by  Alpheus  H. 
Snow.  May,  1911. 

5.  An  International  Court  of  Justice  the  Next 
Step,  by  George  Grafton  Wilson.  Salient  Thoughts, 
by  Theodore  Marburg.  August,  1911. 

6.  The  work  of  the  Hague  Court,  by  N.  Politis. 
November,  1911. 

7.  The  Proposed  Arbitration  Treaties  with  Great 
Britain  and  France,  by  William  Howard  Taft. 
February,  1912. 

8.  Non  Justiciable  Disputes  and  the  Peace  Treat- 
ies, by  Omer  F.  Hershey.  May,  1912. 

g.  The  International  Grand  Jury,  by  William  I. 

Hull.  August,  1912. 

10.  The  Court  of  Arbitral  Justice,  by  James  Brown 
Scott.  November,  1912. 

ANNOUNCEMENT. 

The  Annual  Conference  of  the  Society  will  be  held  at  the  New 
Willard  Hotel,  Washington,  D.  C.,  December  20-21.  There  will 
be  addresses  by  men  equally  as  emi  ’ — 

have  heretofore  appeared  before  the 
liam  Howard  Taft  will  speak  at  the  < 
sions  will  close.  Members  of  the  So 
in  the  cause  are  cordially  invited  to 


S282C9efr0a 


seuEjqn  tysjauun  0>fn(] 


